Environmental Violations Administrative Monetary Penalties Regulations Stock Review – discussion document

Introduction

The Cabinet Directive on Regulation (the directive) sets out the Government of Canada’s expectations and requirements for developing, managing and reviewing federal regulations. It requires departments and agencies to regularly review existing regulations, including technical guidance and other associated policies. The purpose of the review is to ensure that regulations continue to be appropriate, effective and achieve their intended policy objectives, while also considering the impacts and burdens of regulations on stakeholders. The review process results in a concrete set of recommendations for departments and agencies to use to address issues identified during the review process.

In accordance with the directive, Environment and Climate Change Canada (ECCC) is undertaking a review of the Environmental Violations Administrative Monetary Penalties Regulations (the Regulations), following ECCC's regulatory stock review plan. As part of the review process, ECCC has launched a consultation with external stakeholders. ECCC will consider all comments received during this consultation when making the final recommendations with respect to the Regulations (e.g., the Regulations are working as intended, amendments are necessary to improve the Regulations, the Regulations should be repealed or replaced with another instrument). Information on the consultation process and how to provide comments is provided below (see the “Providing feedback” section below).

Purpose of this discussion document

This discussion document summarizes information on the Regulations and identifies key issues for interested parties to consider and discuss when sharing feedback. These parties include Indigenous peoples, governments, and communities, other government departments and agencies, environmental non-governmental organizations, and other interested members of the public.

ECCC is seeking input on a wide range of questions (see “Key Issues” section below) related to the Regulations, such as:

• How effectively do AMPs deter non-compliance?
• How effectively do AMPs address non-compliance?
• Are the aggravating factors appropriate in the current environmental, social, economic, and political contexts?
• What is the public’s interest in protecting the environment and nature by way of penalties such as AMPs?
• Are there any improvements that should be made to the administrative aspects of the Regulations while still ensuring environmental protection?

Background on the Environmental Violations Administrative Monetary Penalties Regulations

The Environmental Violations Administrative Monetary Penalties Regulations came into force on June 2, 2017. The Regulations completed ECCC’s administrative monetary penalties (AMPs) regime of civil sanctions, established by the Environmental Violations Administrative Monetary Penalties Act (the Act). Pursuant to the Act, ECCC enforcement officers enforce seven environmental acts that are subject to AMPs:

• Antarctic Environmental Protection Act
• Canada Wildlife Act
• Canadian Environmental Protection Act, 1999 (Parts 7 and 9)
• Greenhouse Gas Pollution Pricing Act
• International River Improvements Act
• Migratory Birds Convention Act, 1994
• Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act

The Regulations designate violations under the seven acts listed above, and their associated regulations, that may be enforced by means of a Notice of Violation (i.e., an AMP) issued to the non-compliant regulatee. These designated violations include contraventions of specific provisions, directions and orders, and failure to comply with an obligation or the condition of a permit issued under one of the seven Acts or their associated regulations (see Schedules 1-3 of the Regulations).

For example, ECCC enforcement officers have issued Notices of Violation to regulatees for:

• violating export conditions under the Cross-Border Movement of Hazardous Waste and Hazardous Recyclable Materials Regulations,
• hunting birds without a permit under the Migratory Birds Regulations,
• failing to submit import declarations in the specified time under the Off-Road Compression-Ignition Engine Emission Regulations,
• entering protected wildlife areas without a permit required under the Wildlife Area Regulations, and
• failing to comply with administrative requirements under the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations.

ECCC considers AMPs to be the appropriate response to a violation when an AMP can effectively:

• encourage compliance;
• contribute to the restoration of damage to the environment and/or achieve conservation of wildlife and habitats (i.e., polluter pays principle);^{Footnote 1} and/or
• remove some benefit or gain realized by the violator as a result of non-compliance.

The decision as to whether an AMP is the appropriate response to an environmental violation designated under the Regulations is made on a case-by-case basis. The decision is made in accordance with the Policy framework to implement the Environmental Violations Administrative Monetary Penalties Act  (the Policy framework), which also provides further details on the role of AMPs as an enforcement measure, the issuance of an AMP, the types of violations for which an AMP may be issued, and more.

Previous amendments

The Regulations have previously been subject to minor amendments, specifically to update Schedule 1. These amendments were necessary to align with new regulatory publications and recent amendments to acts and regulations under ECCC’s mandate.  Amendments included adding, modifying, or deleting various provisions that may be enforced by means of an AMP.

Key issues

The key issues to consider when sharing feedback are described below and include topics such as:

• AMPs and other enforcement measures;
• the methodology and factors that determine the penalty amount;
• payment of penalties issued under the Regulations; and
• other general matters related to the implementation of the Regulations.

The questions that accompany each issue are intended to guide responses, which may focus on specific impacts or challenges that have arisen during the implementation of the Regulations.

Topic 1: Administrative Monetary Penalties (AMPs) and Other Enforcement Measures
ECCC’s enforcement officers use different enforcement measures to encourage compliance and address non-compliance. These include Notice of Violation (i.e., an AMP), tickets, written warnings, compliance orders, and prosecution. Officers will decide which enforcement measure is most appropriate by applying the Policy framework and relevant Compliance and Enforcement Policies.  Enforcement measures such as AMPs are civil sanctions, while others are criminal sanctions that focus on denunciation of, and punishment for, wrongful conduct. Deterrence is a common objective for both civil and criminal regimes. Importantly, an alleged violator cannot be subject to an AMP and prosecution for the same contravention, and there is no possibility for imprisonment when an enforcement officer issues a Notice of Violation in response to a violation (see subsection 13(2) of the Environmental Violations Administrative Monetary Penalties Act).

When it comes to addressing violations of the laws within ECCC’s mandate, which are meant to conserve wildlife and protect the environment and human health, AMPs may be a more widely useful tool than others. Other enforcement measures available under ECCC legislation, like written warnings, tickets, compliance orders, and prosecution may not always effectively encourage compliance or deter future non-compliance, depending on the circumstance. Written warnings may not be sufficient to promote ongoing compliance and do not carry a financial penalty, while prosecution might be too severe. Tickets are only available for contraventions designated under the Contraventions Regulations and only in provinces where an implementation agreement has been signed by the federal and provincial governments. In contrast, AMPs are established and administered by the responsible department, and can be issued in all provinces and territories, thereby filing a gap in enforcement measures available.

While tickets and AMPs are complementary in enforcing statutory offences, they are not duplicative. For example, they both efficiently address violations by imposing a monetary penalty and reduce the burden on the courts. However, when a recipient contests a ticket, the case proceeds through the provincial court system, whereas a challenge to a Notice of Violation is heard by an administrative tribunal. The Crown must meet a higher standard of proof if a ticket is contested (which is proof beyond a reasonable doubt), whereas the AMPs regime requires the Minister to prove the violation on a balance of probabilities, a lower standard of proof, if a review is requested. In the 2021 Department of Justice report, “Evaluation of the Contraventions Act Program”, it was noted that where tickets are an alternative to the summary conviction process (i.e., involving the courts), AMPs are a system administered by a responsible department that ensures compliance through civil penalties instead.

At the far end of the spectrum of enforcement measures, prosecution can be a resource-intensive option, making this option rightfully reserved for cases where specific conditions are met: where there is both a reasonable prospect of a conviction, and the prosecution is in the public interest.  These types of conditions do not need to be met to issue an AMP. An AMP can range from hundreds to thousands of dollars depending on factors such as the nature of the violation, the type of violator, such as an individual or a corporation, whether the violator has a history of non-compliance and whether there was an economic gain as a result of the violation.

ECCC considers AMPs to be a valuable enforcement measure. They fall between warning letters and prosecutions and fill the gaps that tickets are not able to fill due to their availability being limited to certain provinces. In fact, between 2018 and 2023, AMPs were the second most used enforcement measure by ECCC after warning letters, making up approximately 25% of all enforcement measures issued during this period.  Importantly, the ECCC AMPs regime currently does not apply to all acts and regulations under ECCC’s mandate, such as Parts 5, 6, and 8 of the Canadian Environmental Protection Act, 1999 and the Species at Risk Act as provisions of these acts are based on criminal law. The AMPs regime is also not available for the Fisheries Act. This creates a gap in enforcement measures available to address violations that are administrative in nature (e.g., failure to maintain or provide documents required to establish compliance with a prohibition). 

ECCC would like feedback on the following:

• How effectively do AMPs deter non-compliance?
• How effectively do AMPs address non-compliance?
• Are other enforcement measures more or less effective at deterring or addressing non-compliance compared to AMPs?
• How might violations of other acts and regulations within ECCC’s mandate benefit from being designated under the Regulations? How might this change impact stakeholders?

Topic 2: Administrative Monetary Penalty Amounts
The Regulations describe the methodology (i.e., calculation) that is applied by enforcement officers to determine the penalty amount, as well as the situations in which aggravating factors may be added (sections 4 to 8). Schedules 4 and 5 of the Regulations list the baseline penalty amounts by violation type (A, B, C, D, E) and violator category (individual or other person, ship, or vessel), as well as the fine amounts that may be added in the presence of aggravating factors, such as history of non-compliance.

In Canadian common law, and in other jurisdictions such as the United Kingdom and the United States, categories of offenders are based frequently on revenue and divided into subcategories beyond those found in the Regulations (see page 20: A discussion paper regarding the environmental fines and sentencing regime, 10 years later).

ECCC would like feedback on the following:

• Does the methodology result in appropriate fine amounts to deter or address non-compliance?
• Is the “history of non-compliance” aggravating factor (section 6 of the Regulations) adequate, or should it be narrowed, broadened, or otherwise clarified? If so, how?
• Are the aggravating factors adequate to ensure all relevant circumstances are considered when a penalty is calculated?
• Are the aggravating factors appropriate in the current environmental, social, economic, and political contexts? Have these contexts changed since the fine amounts came into force in 2017?
• What is the public’s interest in protecting the environment and nature by way of penalties such as AMPs?
• What might be the role of Indigenous legal traditions, Indigenous knowledge, and perspectives in determining penalty amounts?
• Should environmental justice principles be taken into consideration or otherwise be reflected in the Regulations?
• Are there specific environmental issues that should be treated differently than others when it comes to non-compliance?
• What would be the impacts to the regulated community if additional aggravating factors were included?
• Are the current categories of violators (individual or other person, ship, or vessel) representative of the range of regulatees (e.g., individuals, small businesses, Canadian or multinational corporations) who may be issued an AMP for non-compliance?
• What would be the impacts of increasing penalty amounts, or adding aggravating factors or other considerations that could increase the total amount of the administrative monetary penalty, on different stakeholders (e.g. individuals, small businesses, corporations, or members of the public)?

Topic 3: Payment
In the process of conducting the regulatory stock review of the Regulations, ECCC has identified potential barriers faced by violators regarding payments. If an AMP is not paid on time, ECCC involves a collections agency and/or the Canada Revenue Agency, which may have important impacts on the violator. The questions below seek to better understand the reasons behind the barriers to compliance.

ECCC would like feedback on the following:

• Are there issues related to the issuance of the AMP (section 9 of the Regulations) in terms of how it is served to the violator or regarding the Notice of Violation form?
• Are there any improvements that should be made to the administrative aspects of the Regulations (e.g. violators failing to pay the fine on time due technological barriers, lack of access to information, deadlines to pay), while still ensuring environmental protection?
• Are there any barriers to paying the fine on time, such as technological barriers, lack of access to information, deadlines to pay, etc.?
• Are there any opportunities to use digital tools to facilitate payment?

Topic 4: Additional general issues
ECCC would like feedback on the following:

• Are there any potential measures to reduce burdens resulting from the implementation of the Regulations (i.e., enforcing ECCC legislation using AMPs) on small businesses without jeopardizing the protection of the environment?
• Are there any obstacles or impacts to stakeholders regarding the request for review process, as established by the Act, section 15?
• Are there any lessons learned or best practices identified by other governments and organizations using AMPs, within or outside the fields of environmental protection and conservation?
• Are there any other areas related to the Regulations requiring attention?

Next steps

The key targets for the stock review process are outlined below:

• Interested parties are invited to provide feedback on this document until July 19, 2024.
• ECCC will review and take into consideration all comments received in response to this engagement.
• The outcome of the review and a summary of feedback received will be published as part of ECCC’s regular online updates on the regulatory stock review plan once the review is completed.

Providing feedback

Please see below for contact information. You are invited to provide input on the consultation topics described above by July 19, 2024 to ensure they are considered as part of ECCC’s stock review process. In addition to comments on the topics described, any other comments related to the review of the Regulations are also welcome.

Contact information

Please send your comments on this discussion document to the email below and indicate “EVAMPR Stock Review Consultation” in the subject line of your message.

In addition, should you be interested in an information session prior to submitting written comments, please indicate “EVAMPR Stock Review Consultation and Information Session” in the subject line of your message.

If you have any questions with respect to the consultation process, the discussion document, or the Regulations, please contact us at the email address indicated below.

Email: DGAL-EB-Consultations@ec.gc.ca.

ECCC welcomes the distribution of this document to other potential interested parties.

Annex 1: Summary of questions

The questions in this Annex are the same as those in the Discussion Document and are intended to help guide the reader articulate their issues related to the management of the Regulations. However, the reader does not have to limit their comments to only these questions.

Topic 1: Administrative Monetary Penalties (AMPs) and Other Enforcement Measures

• How effectively do AMPs deter non-compliance?
• How effectively do AMPs address non-compliance?
• Are other enforcement measures more or less effective at deterring or addressing non-compliance compared to AMPs?
• How might violations of other acts and regulations within ECCC’s mandate benefit from being designated under the Regulations? How might this change impact stakeholders?

Topic 2: Administrative Monetary Penalty Amounts

• Does the methodology result in appropriate fine amounts to deter or address non-compliance?
• Is the “history of non-compliance” aggravating factor (section 6 of the Regulations) adequate, or should it be narrowed, broadened, or otherwise clarified? If so, how?
• Are the aggravating factors adequate to ensure all relevant circumstances are considered when a penalty is calculated?
• Are the aggravating factors appropriate in the current environmental, social, economic, and political contexts? Have these contexts changed since the fine amounts came into force in 2017?
• What is the public’s interest in protecting the environment and nature by way of penalties such as AMPs?
• What might be the role of Indigenous legal traditions, Indigenous knowledge, and perspectives in determining penalty amounts?
• Should environmental justice principles be taken into consideration or otherwise be reflected in the Regulations?
• Are there specific environmental issues that should be treated differently than others when it comes to non-compliance?
• What would be the impacts to the regulated community if additional aggravating factors were included?
• Are the current categories of violators (individual or other person, ship, or vessel) representative of the range of regulatees (e.g., individuals, small businesses, Canadian or multinational corporations) who may be issued an AMP for non-compliance?
• What would be the impacts of increasing penalty amounts, or adding aggravating factors or other considerations that could increase the total amount of the administrative monetary penalty, on different stakeholders (e.g. individuals, small businesses, corporations, or members of the public)?

Topic 3: Payment

• Are there issues related to the issuance of the AMP (section 9 of the Regulations) in terms of how it is served to the violator or regarding the Notice of Violation form?
• Are there any improvements that should be made to the administrative aspects of the Regulations (e.g. violators failing to pay the fine on time due technological barriers, lack of access to information, deadlines to pay), while still ensuring environmental protection?
• Are there any barriers to paying the fine on time, such as technological barriers, lack of access to information, deadlines to pay, etc.?
• Are there any opportunities to use digital tools to facilitate payment?

Topic 4: Additional general issues

• Are there any potential measures to reduce burdens resulting from the implementation of the Regulations (i.e., enforcing ECCC legislation using AMPs) on small businesses without jeopardizing the protection of the environment?
• Are there any obstacles or impacts to stakeholders regarding the request for review process, as established by the Act, section 15?
• Are there any lessons learned or best practices identified by other organizations using AMPs, within or outside the fields of environmental protection and conservation?
• Are there any other areas related to the Regulations requiring attention?